Next Steps For File A Bid Protest
Submit a written position statement
The Bid Unit processes the protest, and reviews the matter to determine whether a bid protest hearing is necessary to assist it in its investigation.
If a bid protest hearing will be held, the Bid Unit sends the protestor and the awarding authority a notice of the date and time of the hearing. The notice informs the parties that they are required to submit written position statements no later than two business days prior to the hearing and that they must send a copy of such statement to the other parties to the bid protest hearing. In most circumstances, the notice will request that the awarding authority refrain from awarding or performing work prior to resolution of the bid protest.
S For Filing A Protest
There are two types of grounds for protest: pre-award and post-award. As their names imply, each occurs at a different stage of the bidding process.
Pre-award protest grounds are based on the accusation that the RFP was unclear, biased against them, or unduly restrictive.
Post-award protests are filed when it is alleged that the awarding agency did not follow established bid award criteria, showed favoritism or had a conflict of interest.
In order to file either type of protest, a party must establish that they are an interested party, meaning they have an economic interest in the outcome of the bid in question. In general, most protests are lodged after the contract has been awarded, even the government has terminated the contract.
Although both state and federal agencies take steps to guarantee that all bids for work or equipment are awarded fairly, there are bound to be instances where a party believes itself wronged. The government contract protest process gives their grievances a voice.
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Protest Before Court Of Federal Claims
The COFC reviews final agency procurement actions. It is the only judicial forum authorized to hear bid protests. The protester must demonstrate it is an interested party. The COFC and its appellate court, the U.S. Court of Appeals for the Federal Circuit uses the Competition in Contracting Acts definition of interested party as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.
The COFC sets aside agency action if it is arbitrary, capricious, abuse of discretion, or not in accordance with the law. It requires the procuring agency to provide the full administrative record associated with the protest. It awards declaratory and injunctive relief. Monetary relief is limited to bid preparation and proposals costs. Remedies issued by COFC are legally binding and may be enforced through contempt of court.
Bid protest lawsuits with the COFC may be filed before or after protests with the procuring agency or GAO. Unlike protests filed with GAO, those filed through COFC do not have the benefit of an automatic stay. They instead request the agency voluntarily to impose a stay, or petition the court for a preliminary injunction, or temporary restraining order.
For additional help with government contracts, contact Whitcomb, Selinsky, PC at 476-4558 or book a free assessment below.
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Protesting Contract Decisions To Gao
Although the regulations encourage companies wishing to protest to seek resolution within the contracting agency before filing a protest with the General Accounting Office , the regulations do allow theparty to file with GAO for resolution.
Warning
If you decide to bypass the contracting officer and buying agency and file your protest directly with the GAO, keep in mind that this is the end of the line for your protest. The GAO’s decision is final, and youcannot appeal it anywhere.
In addition to keeping your avenues of protest and appeal open, protesting to the contracting officer or contracting agency instead of directly to the GAO has other advantages. The company protesting can often gain additional time to gather more information that will assist it if it later protests to another forum.
There are some matters that cannot be protested to GAO. Among these are:
Although many parties retain an attorney in order to benefit from the attorney’s familiarity with GAO’s bid protest process and with procurement statutes and regulations, an attorney is not required for purposes of filing a protest. Under current regulations, if you win your protest, the contracting agency will pay your attorney’s fees, but there is a cap . If fees exceed that amount, you will have to show special circumstances to justify a higher amount.
What Is An Interested Party Legal Definition In Cofc & Gao Protest Regulations
Sometimes Meeting the Legal Definition of What is Economic Interested Party in Bid Protest Litigation is not Always Simple. If you are contemplating filing a bid protest, you must first be sure that you are an interested party. If you are not, the case will be dismissed.
The Federal Circuit borrowed the interested party legal definition from the Competition in Contracting Act, which explicitly defines the term interested as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract. Am. Fedn of Govt Emps., AFL-CIO v. United States, 258 F.3d 1294, 1302 ).
Not all persons or companies are interested parties. When you file a bid protest, it takes valuable resources. Therefore, getting this right the first time. Under GAO bid protest regulations the interested party legal definition for a bid protest means that you must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. This definition is also similar to bid protests filed at the Court of Federal Claims .
In addition, knowing how to file a protest means that you must articulate that if GAO or COFC sustained the protest, you would have a substantial chance of getting the award. Examples of being interested would be:
To Meet the Interested Party Definition in Bid Protest Regulations, You Must Show Prejudice
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Do You Need An Attorney To File A Government Protest Or Participate As An Intervenor
There is no requirement neither as the filing party nor as an intervenor, to hire an attorney to represent you in a government contract protest. However, the downside is that if you file on your own, you will not get access to the protective order. Without such access, your chances of effectively protecting your rights are minimized because you would not be able to point to supporting evidence that supports your initial protest.
- Intervenors without counsel will only receive redacted versions of the Agency Record.
For additional information on filing a government protest or establishing your company as an intervenor, call our bid protest lawyers at 1-866-601-5518.
Initiation Of A Claim
Contractor claims shall be submitted, in writing, to the contracting officer for a decision within 6 years after accrual of a claim, unless the contracting parties agreed to a shorter time period. This 6-year time period does not apply to contracts awarded prior to October 1,1995. The contracting officer shall document the contract file with evidence of the date of receipt of any submission from the contractor deemed to be a claim by the contracting officer.
The contracting officer shall issue a written decision on any Government claim initiated against a contractor within 6 years after accrual of the claim, unless the contracting parties agreed to a shorter time period. The 6-year period shall not apply to contracts awarded prior to October 1,1995, or to a Government claim based on a contractor claim involving fraud.
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Government Contract Protest Process: Everything To Know
A government contract protest process arises when a party believes that the competitive bidding process for a government contract was violated.3 min read
A government contract protest process arises when a party believes that the competitive bidding process for a government contract was violated. The competitive bidding process for government contracts, whether at the state or federal level, contains standard steps regulating the way contracts are accepted and awarded.
These standards have either been developed over the years through government contract case law or can be created through statutes to ensure fairness in dealings between companies and the government. They also seek to establish that no partiality has impacted the final decision, for example through previous business dealings or, as can be the case, improprieties arising from favoritism or even graft.
Trends In Bid Protest Outcomes Differed Between Gao And Cofc
- Effectiveness rates at GAO the share of protest cases sustained or in which the contracting agency took corrective action held steady over time. This suggests that firms are generally not filing protests without merit.
- At GAO, DoD agencies had slightly lower effectiveness rates than non-DoD agencies. Protests of task orders, awards for specific tasks or deliveries under a contract, had slightly higher effectiveness rates than other types of protests.
- The sustained rate at COFC has declined over time, suggesting that firms may be more willing to file protests with the court going forward.
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Typical Competitive Bid Standards
Although the exact language in any government contract may vary, competitive bidding standards decree that:
The bidding process is open to all parties and will be conducted in a transparent manner.
All final decisions must be unbiased and based purely on the criteria established in the .
All bidders are placed on an even playing field, meaning that all bidders must be treated fairly and judged on an equal basis.
For instance, RFPs may insist that hiring quotas based on race or gender be met by companies bidding on the project, specify certain construction materials that must be used on the project, or set requirements that small business subcontractors be included in all general construction contracts. If any of these standards are not met, the government has the right to automatically turn the bid down. The government can only waive any contract bidding standards if they are waived for all bidders, and in effect, the RFP is amended.
If on the other hand, the government fails to comply with the standards in the competitive bidding RFP when awarding the contract, then the resulting contract can be determined to be invalid or even illegal as a matter of contract law. If a party believes that it lost out on a contract because it was wrongfully awarded, that company has the right to file a government contract protest.
The Decision To File A Bid Protest
If you are considering filing a bid protest, the first thing you should do is contact Malyszek & Malyszek as soon as possible to ensure that your critical deadlines have not passed. There are many time sensitive statutory and legal triggers that protestors must know.Our clients that have successfully filed a protest have received the benefits of the awarded contract for up to a five year period. Many contractors are realizing the benefits of being awarded a contract, which could last up to five years. The benefits must outweigh the financial risk of the protest.
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Relationship Of The Disputes Statute To Pub L85
Requests for relief under Public Law85-804 are not claims within the Disputes statute or the Disputes clause at 52.233-1, Disputes, and shall be processed under subpart 50.1, Extraordinary Contractual Actions. However, relief formerly available only under Public Law85-804 i.e., legal entitlement to rescission or reformation for mutual mistake, is now available within the authority of the contracting officer under the Contract Disputes statute and the Disputes clause. In case of a question whether the contracting officer has authority to settle or decide specific types of claims, the contracting officer should seek legal advice.
A contractors allegation that it is entitled to rescission or reformation of its contract in order to correct or mitigate the effect of a mistake shall be treated as a claim under the Disputes statute. A contract may be reformed or rescinded by the contracting officer if the contractor would be entitled to such remedy or relief under the law of Federal contracts. Due to the complex legal issues likely to be associated with allegations of legal entitlement, contracting officers shall make written decisions, prepared with the advice and assistance of legal counsel, either granting or denying relief in whole or in part.
Dispositive Motion In Lieu Of Report
306.1 In lieu of filing the Agency Report, the contracting agency may file a dispositive motion with the Board and serve it on all parties. If the motion is filed and denied by the Board in whole or in part, the Agency Report shall be filed no later than ten days after receipt of the Board’s ruling or within a lesser period as the Board may order.
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What You Need For File A Bid Protest
Bid protests may be filed with the AGO’s Bid Unit by any “interested party,” including unsuccessful bidders, citizens, watchdog groups, unions, trade associations and competitors.
To file a bid protest, a protestor should send a letter to the Bid Unit that identifies:
- the awarding authority against whom the protest is being filed
- the public works / public building construction project for which bids are solicited
- the particular law violated, if known and
- a detailed description of the alleged violation .
Resolving Government Contract Conflicts Out Of Court
While we want to let you know about your right to dispute and appeal, we also want to make you aware that the government’s stated policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Government rules state that reasonable efforts should be made to resolve controversies, prior to the submission of a claim. And where appropriate, agencies are encouraged to use ADR procedures to the maximum extent.
Traditionally, contracting parties have relied on claims and litigation to resolve disputes. In the interest of economy and efficiency and achieving a “win/win” situation for both agencies and contractors, less confrontational resolution procedures are being utilized more and more often. Communication and openness throughout the procurement process greatly reduce conflicts. The Office of Federal Procurement Policy has recognized the value of such procedures by including an agency commitment to institute an informal, timely conflict resolution mechanism for resolving pre- and post-award issues. Three techniques that are being used are partnering, ombudsman, and alternative dispute resolution.
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Your Right To Protest And Dispute A Government Decision Regarding A Contract
If the government makes a decision you don’t agree with regarding a government contract, you have alternatives. A contractor can use disputes, protests and other forms of conflict resolution to settle the issue.
If the contracting officer or buying agency makes a decision that you don’t agree with or that you believe is incorrect, what can you do? Government contracting regulations provide contractors with several remedies, all the way from filing a simple protest or dispute to taking the government to court.
Government Contract Protest Tips For Intervenor
In any government contract bid protest, and under bid protest intervenor law, any interested party, including the awardee, can intervene and protect their rights to the contract. The Court of Federal Claims does not have very many statutory provisions for intervenor law. GAO bid protest rules typically set the standard for intervenors.
Intervenors in any government protest must still meet the interested partyrequirements. After the intervention process is complete, your attorney may seek admission to the protective order.
- Immediately after receiving notice of the protest from GAO, the government contracting agency must give notice of the protest to the awardee if an award has been made.
- If there has been no award, government contracting agencies must notify all bidders or offerors who have a reasonable chance of receiving an award.
GAO may let other firms take part in the government protest as intervenors. This is governed by 4 CFR 21.0. If the award has been made, GAO permits only the awardee to intervene in the government contract protest. If the award has not been made, and you are a contractor seeking to intervene, you should advise GAO and the other interested parties, and then contact GAO to learn whether they will be permitted to intervene.
Your notice of intervention into a government contract bid protest could simply be a brief letter that includes the name, address, and telephone and fax numbers of your company or intervenors lawyer.
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What Are The Methods By Which A Bidder May File A Protest
There are two methods by which an individual can file a protest:
1. Filing a protest with the CO is called an agency protest. The CO will review the protest and make a determination as to its validity.
2. Filing a protest with the General Accounting Office is called a formal protest.
The protest must be filed in writing and must name the contracting agency and the contract or solicitation, and it must provide a detailed statement of the legal and factual grounds for the protest and provide information establishing that the protester is an interested party for the purpose of filing a protest.
The protest must also be timely. Protests against alleged improprieties must be filed prior to bid opening or proposal closing. Other protests must be filed within ten calendar days from the date the basis for the protest is known or should have been known. For example, if an agency protest is denied, a protest to GAO would have to be filed within ten days. In negotiated procurements for which an offeror requested a debriefing, the offeror has ten calendar days, dating from the debriefing, to file a protest.
